All Articles: Procedure

What are the duties of an expert witness in the immigration tribunal?

Expert reports are common in asylum and human rights cases. They usually address either the conditions in the applicant’s country of origin or their physical or mental health. The duties of an expert witness giving evidence in court are well establi ...

28th April 2022 By

Briefing: invalid immigration applications

For a UK immigration application to be considered at all, it must be valid. Whether an applicant meets the criteria is a moot point if this first, fundamental requirement isn’t met. Validity is a bit like oxygen: all things being well, it is invisib ...

25th April 2022 By

Can someone who has made an invalid extension application still rely on the 14-day grace period?

How broadly does the decision in R (Afzal) v Secretary of State for the Home Department [2021] EWCA Civ 1909 protect applicants from the catastrophic consequences of becoming an overstayer after making an invalid application to extend immigration perm ...

14th April 2022 By

Immigration and nationality fees for 2022/23

The updated list of fees for immigration and nationality applications that apply from 6 April 2022 shows that most visas and extensions are up £15. Citizenship and sponsor licence rates are unchanged.  Headline application fees had been largely froz ...

7th April 2022 By

Afghan judge to get visa decision before having to come out of hiding

The Home Office has been ordered to make a decision in principle on an Afghan judge’s visa before making him come out of hiding to lodge a formal application. The case is R (JZ) v Secretary of State for Foreign, Commonwealth and Development Affa ...

5th April 2022 By

Falling foul of contempt of court may be easier than you think

Few people I know have ever had to face a contempt of court allegation. This is perhaps surprising given the range of activities potentially covered by the law of contempt, highlighted by the very recent decision of the Court of Appeal in R (Counsel G ...

17th February 2022 By

Unfairness required to set aside appeals decided on paper under unlawful COVID-19 process

Immigration appeals decided without a hearing under the Upper Tribunal’s notorious COVID-19 guidance don’t automatically fall to be set aside, the Court of Appeal has held in Hussain and another v Secretary of State for the Home Department [2022] ...

17th February 2022 By

English barristers CAN argue immigration cases in Scotland… so long as they don’t set foot there

A Scottish lawyer can represent a client in the immigration tribunal anywhere in the UK. The same is true of a Northern Irish lawyer. The same is true of a level 3 adviser registered with the Office of the Immigration Services Commissioner. Lawyers pr ...

15th February 2022 By

Human rights damages claims can be transferred from Upper Tribunal to County Court

The Upper Tribunal has decided that it has the power to transfer damages claims resulting from judicial review proceedings to the County Court. The tribunal held that its incidental powers mirror those enjoyed by the High Court, which routinely transf ...

10th January 2022 By

No costs awarded where claimant got interim relief but legal issues unresolved

In R (Shahi) v Secretary of State for the Home Department [2021] EWCA Civ 1676 the Court of Appeal held that a grant of interim relief did not entitle a claimant to his costs, where there was no settlement or court determination of the underlying lega ...

30th November 2021 By

Reopening a finalised immigration appeal is actually pretty hard

It’s hard to imagine a time when immigration lawyers will stop banging the fairness drum. Far from being responsible for an appeals “merry-go-round”, we find ourselves day in and day out trying to resolve unfair issues and cases in a highly ...

24th November 2021 By

Upper Tribunal revisits issue of permission for video evidence from abroad

Last week I set out some observations on the taking of evidence by videoconference from abroad. I pointed to substantial authority that, in the case of the willing litigant or witness outside the UK dialling up on Zoom, where no judicial assistance ( ...

22nd November 2021 By

Upper Tribunal reminds everyone: this is not the place for new evidence

Immigration appeals can last a long time: often years and years. What happens when things change during the appeal? This is the question answered by the Upper Tribunal in Akter (appellate jurisdiction; E and R challenges) [2021] UKUT 272 (IAC). The m ...

16th November 2021 By

Does every Zoom witness abroad need foreign state permission to dial in?

Among the changes brought about by the pandemic has been greatly increased use of videoconferencing technology by immigration tribunals, including for the taking of evidence. This has made it much more viable for live evidence of appellants and other ...

15th November 2021 By

Briefing: what is section 3C leave?

If a migrant makes a valid application to extend their leave (permission) to be in the UK before it expires, their existing leave will be rolled over until a decision has been made on the application, even if this is after the original expiry date. Th ...

1st November 2021 By

Confirmed: Home Office can ignore human rights claims

The Court of Appeal has given its long-awaited decision in the case of MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500. Unfortunately, it confirms that the Home Office can refuse to engage with a human rights claim for ...

21st October 2021 By

Tweaks to the Immigration Rules on validity, variation and withdrawal

Lurking in the weeds of the latest statement of changes are some tweaks to the procedural requirements in Part 1 of the Immigration Rules. Most take effect today. These provisions may not be the sexiest part of immigration law but they are worth payin ...

6th October 2021 By

No blanket relief for appellants denied hearing under unlawful pandemic guidance

At the outset of the pandemic, on 23 March 2021, Upper Tribunal President Lane issued guidance for making deciding immigration appeals “on the papers”, without an oral hearing. As all immigration practitioners know, oral hearings are essen ...

27th September 2021 By

Home Office conceding 30% of appeals, Pres says

The Home Office is now conceding three out of every ten immigration appeals before the hearing, a senior immigration judge has said. Michael Clements, President of the First-tier Tribunal (Immigration and Asylum Chamber), puts the cheerful stat down t ...

23rd September 2021 By

Immigration application made during visa expiry grace period is not “in time”

When is an immigration application made “in time”? Does it need to be submitted before the expiry of the applicant’s visa? Or is an application made after the visa expires, but within the grace period permitted under the Immigration ...

15th September 2021 By

Court of Appeal confirms that 3C leave can be revived

When a person’s visa expires whilst they have an outstanding application or appeal, they have what is referred to as “3C leave”. This is named after section 3C of the Immigration Act 1971, which essentially provides that the person’s v ...

31st August 2021 By

Deported murderer loses anonymity

Selami Cokaj describes himself on LinkedIn as “a shrewd businessman, with a killer instinct”. It is an unfortunate turn of phrase: before moving to the UK in 1997, Mr Cokaj was convicted of murder in his native Albania. His unsuccessful hu ...

18th August 2021 By

Upper Tribunal forced to U-turn on “new matters” appeal loophole

In Hydar (s 120 response; s 85 “new matter”: Birch) [2021] UKUT 176 (IAC), the Upper Tribunal has done an unwilling U-turn on the earlier case of Birch (precariousness and mistake; new matters) [2020] UKUT 86 (IAC). Raising “new matters” in a ...

9th August 2021 By

Unnecessary fees for overseas acts heap fresh misery on live entertainment sector

It’s been a very long time since most UK live music and theatre “sponsors” have had to issue paperwork for overseas artists to come into the UK. For most, it’s been 16 months and counting. Since then, we’ve had Brexit, dragging EU ac ...

3rd August 2021 By

Judicial Review Bill to abolish most Cart cases

The Judicial Review and Courts Bill 2021, published yesterday, will mostly abolish the right of migrants to apply to the High Court to have an appeal reopened if rejected by both chambers of the immigration tribunal. This is the process known to lawye ...

22nd July 2021 By

Briefing: the Nationality and Borders Bill, Part 5

We round off our coverage of the Nationality and Borders Bill, the second reading of which continues today, with Part 5. This consists of eight “miscellaneous” clauses. Four of them are what the House of Commons Library describes as “placeholder ...

20th July 2021 By

Upper Tribunal can accept late acknowledgment of service in judicial review cases

The Upper Tribunal can consider late acknowledgments of service from the Home Office when deciding whether to grant permission for judicial review proceedings, the Court of Appeal has ruled in R (KA) v Secretary of State for the Home Department [2021] ...

14th July 2021 By

Mental capacity and the immigration system

Assisting migrants who lack mental capacity to instruct a lawyer, or whose capacity fluctuates, can pose challenges. Without having clear instructions on a person’s immigration history and what they would like to do, it can often be impossible to pr ...

8th July 2021 By

Lawyers warned not to include brand new arguments in Cart judicial reviews

Always a stickler for procedure, President Lane has again warned lawyers to not judicially review decisions of the Upper Tribunal refusing permission to appeal on grounds that were not before the Upper Tribunal in the first place. The case is Osefiso ...

25th May 2021 By
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